CANADA PROVINCE OF QUEBEC

DISTRICT OF ______

LOCALITE ______COURT OF QUEBEC

NO: ______(Criminal Chamber)

Between

______

Applicant

-and-

Attorney General for Quebec

Respondent

APPLICATION TO QUASH

AND RETURN OF CONTROLLED SUBSTANCE

(C.C.C S.601 and C.D.S.A S.24, not the Charter)

TO ONE OF THE HONOURABLE JUDGES OF THE COURT (CRIMINAL CHAMBER) FOR THE DISTRICT OF ______SITTING IN FIRST INSTANCE AND SEIZED OF THE MOTION, the Applicant states:

THE APPLICATION IS FOR AN ORDER declaring that:

A.1) the Accused'sCDSA charges relating to marijuana be

quashed as of no force and effect; and if jurisdiction:

A.2) absent a viable medical exemption, the prohibitions on

marijuana in the CDSA are of no force and effect; and

A.3) the word "marijuana" be struck from CDSA Schedule II;

A.4) all convictions registered since Aug 1 2001 until Smith

corrected the Bad Exemption be expunged.

B) staying any charges under S.5 Trafficking when both

Possession and Production of the substance being no longer

prohibited brings the administration of justice into disrepute.

C) the seized Controlled Substance be returned to Applicant

pursuant to S.24 of the CDSA.

AND FOR ANY ORDER abridging any time for service or amending

any error or omission as to form, color, font, margins,

content which the Honourable Justice may allow.

1. The grounds of the Application are:

1) POLCOA: Parliament Only Legislates, Courts Only Abrogate.

Pursuant to Interpretation Act S.32(a), the prohibitions on

possession and production of marijuana in the CDSA were not

revived by repealing the defects in the MMAR and remain of

no force and effect since struck down in Parker [2001] and

Krieger [2003]. Once the offences were no longer in force,

Only Parliament Legislates new law, the Ontario Court of

Appeal could not revive the prohibitions that had been of no

force or effect the previous 2 years. Parliament has never

re-enacted the prohibitions since they were struck down;

2) BENO: Bad Exemption means No Offence. Just as the Hitzig

"Bad Exemption" [2003] by regulated Mis-Supply meant there

was "No Offence" in force since Aug 1 2001 absent an acceptable

medical exemption when J.P. was charged; so too, the

prohibitions should have been declared not in force after

A) Sfetkopoulos declared the MMAR unconstitutional

for the re-imposition of the first Hitzig supply cap;

B) Beren declared the MMAR unconstitutional for the re-

imposition of the two Hitzig supply caps;

C) Smith declared a Worse "Bad Exemption" [2015] by

regulatedMis-Use meaning there was "No Offence" in force

since Aug 1 2001 absent an acceptable medical exemption;

D) Allard declared the MMPR in its entirety unconstitutional

from April 1 2014 to Aug 24, 2016;this Court is bound by the Ontario Court of Appeal's J.P. precedent to declare that NO OFFENCE is in force while the BAD EXEMPTION existed.

PART I - FACTS

R. V. PARKER [2000]

3. On July 31 2000, the Ontario Court of Appeal in R. v.

Parker declared the prohibition on possession of marijuana

inCDSA s.4 to be invalid absent an adequate medical

exemption; suspended 1 year for time to set up a viable

acceptable constitutional working medical exemption during

which time Parker was exempted from the Cultivation and

Possession prohibitions in the CDSA. Leave to appeal to the

Supreme Court of Canada was not sought.

R. V. KRIEGER [2000]

4. On Dec 11 2000, Alberta Superior Court Justice Acton

adopted the reasons of the Ontario Court of Appeal to strike

down the prohibition on cultivation in S.7! suspended 1

year.

MMAR Marijuana Medical Access Regulations [2001]

5. On July 30, 2001, Health Canada issued the Marihuana

Medical Access Regulations MMAR to comply with the

requirement for an acceptable medical exemption to the

prohibitions but with no time for Terry Parker to apply

before his one-year exemption expired the next day. The MMAR

did not provide Parker with an exemption to replace his

expiring court-exemption, it provided him an application

form with one day to line up his doctors and get it

submitted for an exemption.

6. On Aug. 1 2001, Terry Parker's court exemption lapsed

without his being exempted in compliance with the Order of

the Parker Court despite Health Canada's claim to have

instituted a working exemption form on time.

R. V. KRIEGER [2003]

7. On Mar 18 2003, the Alberta Court of Appeal dismissed the

Crown appeal of the Acton decision striking down the S.7

prohibition on production. Application for Leave to Appeal

to the Supreme Court of Canada #29569 denied.

HITZIG V. HMQ [2003]

8. On Oct 7 2003 in Hitzig v. HMQ, the Ontario Court of Appeal determined that the MMARs would become constitutional if the following parts were immediately declared of no force and effect:

a) The prohibition against an ATP holder compensating a DPL

holder for growing marihuana;

b) The provision preventing a DPL holder from growing

for more than one ATP holder;

c) The prohibition against a DPL holder producing marihuana

in common with more than two other DPL holders; and

d) The second specialist requirement.

9. Parts a) and d) impeded access while Part b) and c) impeded supply.

BENO

10. In Paragraph 170:

[170] In R. v. Parker, supra, this court declared the

prohibition invalid as of July 31, 2001 if by that date

the Government had not enacted a constitutionally sound

medical exemption. Our decision in this case confirms

that it did not do so. Hence the marihuana prohibition

in s. 4 has been of no force or effect since July 31, 2001.

11. Only a few parts, not the entirety of the MMAR regime,

was declared of no force, but enough so that the exemption

was illusory. A car missing spark plugs is not

malfunctioning in its entirety but it's not working. So only

those few defective parts of the MMAR rendered the regime

constitutionally dysfunctional and had to be struck down.

Partly defective still caused the Parker-Krieger

declarations of invalidity of the Possession offence to take

effect.

REVIVAL OF CDSA PROHIBITIONS

12. The Hitzig Court went on further to state that their

striking down the defective parts of the MMAR has revived

the prohibitions in the CDSA that had been of no force since

July 31 2001.

[170] First, if we do not suspend our order, there will

immediately be a constitutionally valid exemption in

effect and the marihuana prohibition in s. 4 of the CDSA

will immediately be constitutionally valid and of full

force and effect.

[170].. our order has the result of constitutionalizing

the medical exemption created by the Government. As a

result, the marihuana prohibition in s. 4 is no longer

inconsistent with the provisions of the Constitution.

Although Parliament may subsequently choose to change

it, that prohibition is now no longer invalid, but is of

full force and effect. Those who establish medical need

are simply exempted from it.

13. In R. v. Johnny Dupuis, Judge Chevalier accepted his

doctor's testimony of his medical need even though Health

Canada had disagreed with his diagnosis and rejected his

exemption application and found him not guilty. He is simply

exempted by establishing medical need and yet so many

medically-needyaccuseds keep making the news.

R. V. J.P (YOUTH) [2003]

14. Professor Alan Young had not asked Hitzig Justice

Lederman to invoke the Parker and Krieger rulings to deal

with the CDSA prohibitions. But R. v. J.P. that same day had

asked to strike the CDSA prohibition for absence of

exemption!

15. On Jan 2 2003, in R. v. J.P. (Youth) Ontario Provincial

Court Judge Phillips quashed the charge ruling No S.4

Possession Offence on the grounds the exemption was

unconstitutional without Parliament re-enacting the section

whether the MMAR worked or not. J.P. had no medical need.

16. On May 16, 2003, Ontario Superior Court Justice Rogin

dismissed the Crown's appeal in J.P. 2,000 remaining

marijuana possession charges laid while there was a Bad

Exemption and No Offence starting on Terry Parker Day Aug. 1

2001 were stayed or withdrawn across Ontario.

17. On Oct 7 2003, the Court of Appeal granted the Crown's

appeal against the MMAR having been improperly legislated

whether the MMAR had worked or not but still sustained the

quash of J.P.'s Possession Count because their Hitzig ruling

had established that there had not been a valid Exemption:

[14]... The Parker order by its terms took effect one

year after its pronouncement. That order was never

varied. After the MMAR came into effect, the question

was not whether the enactment of the MMAR had any effect

on the Parker order, but rather whether the prohibition

against possession of marihuana in s. 4 of the CDSA, as

modified by the MMAR, was constitutional. If it was, the

offence of possession was in force. Paired with the

suspension of the declaration in Parker, this would have

the effect of keeping the possession prohibition in

force continually. If the MMAR did not create a

constitutionally valid exception, as we have held, then

according to the ratio in Parker, the possession

prohibition in s. 4 was unconstitutional and of no force

and effect. The determination of whether there was an

offence of possession of marihuana in force as of April

2002 depended not on the terms of the Parker order but

on whether the Government had cured the constitutional

defect identified in Parker. It had not.

[15] The order made by Lederman J. in Hitzig in January

2003 did not address the prohibition against possession

in s. 4 of the CDSA. While, according to the ratio in

Parker, supra, Lederman J.'s determination that the MMAR

did not provide an adequate medical exemption meant that

there was no constitutional prohibition against

possession of marihuana in s. 4 of the CDSA, Lederman J.

did not make that declaration...

[16]... whether there was a crime of possession of

marihuana in force on the day the respondent was charged

turned on whether s. 4 combined with the MMAR created a

constitutional prohibition against the possession of

marihuana....

[31] The court in Parker, supra, declared that the

marihuana prohibition in s. 4 was inconsistent with the

Charter and consequently of no force or effect absent an

adequate medical exemption...

[32]... After the MMAR came into force, the question

therefore became whether the prohibition against

possession of marihuana as modified by the MMAR was

constitutional. If it was, then the possession

prohibition was in force. If the MMAR did not solve the

constitutional problem, then the possession prohibition,

even as modified by the MMAR, was of no force or effect.

[33] There was no need to amend or re-enact s. 4 of the

CDSA to address the constitutional problem in Parker.

That problem arose from the absence of a

constitutionally adequate medical exemption. As our

order in Hitzig demonstrates, the prohibition against

possession of marihuana in s. 4 is in force when there

is a constitutionally acceptable medical exemption in

force.

[34] We would dismiss the appeal. [of the Crown]

18. Though J.P. had no medical need, Absent Exemption means

Prohibition invalid is repeated no less than eight times!!

twice in paragraph [14], in [15], [16], [31], [32], and

twice more in [33]. A Bad Exemption means No Offence. BENO.

4,000 MORE POSSESSION CHARGES DROPPED

19. On Dec. 3 2003, and after Leave to Appeal the J.P.

decision to the Supreme Court of Canada was not sought the

Crown stayed all remaining 4,000 charges across the rest of

Canada under the section deemed to be repealed during the

HitzigBENO period of exemption invalidity, after July 31

2001 up until October 7, 2003, medical need or not, but did

not stay any remaining production charges due to the Krieger

invalidation of the S.7. prohibition.

SEEDS & DRIED MARIJUANA MITIGATE SUPPLY CAPS

20. On Dec 10 7 2003, Health Canada re-imposed the same

patient-to-grower and growers-to-garden caps that had

rendered the MMAR unconstitutionally dysfunctional in

Hitzig. The Government sought to address the "supply" defect

by authorizing a new government supply for seeds and dried

cannabis (marihuana). Sadly, supplying seeds has no effect

on patient-grower and growers/site ratios! And selling dried

marijuana to non-growers does not affect growers either!

SFETKOPOULOS

21. On Jan 10 2008, in Sfetkopoulos v. Canada, Alan Young

challenged the re-imposed patients-to-grower cap which his

Hitzig decision had struck down and had it struck down

again. He did not again seek to strike down the re-imposed

growers-to-site cap which his Hitzig decision had struck

down. And again, no motion was made to follow Parker and

Krieger rulings to declare the CDSA prohibitions of no force

while the exemption was dysfunctional.

22. Once again, the Exemption was found to be

unconstitutional but this time but there was no J.P.

companion appeal to address the constitutionality of the

CDSA while the exemption had been defective as J.P. had been

there for Hitzig, so the Parker/Krieger principle was not

considered though the judge should have and no charges laid

during the period of invalidity back to Dec 3 2003 were

stayed.

23. But Crown Attorney Sean Gaudet did mention the fear

someone else would ask for BENO in their Supreme Court of

Canada Memorandum:

"[33] The Court in R. v. J.P. ruled that the combined

effect of Parker and Hitzig meant there was no

constitutionally valid marijuana possession offence

between July 31 2001 and Oct 7 2003, the date the MMAR

were constitutionally rectified by the decision in

Hitzig. Courts may construe the Federal Court of

Appeal's decision as creating a similar period of

retrospective invalidity dating back to December 3 2003,

the date that s.41(b.1) was re-introduced into the

MMAR."

BEREN

24. On Feb 2 2009, in R. v. Beren, applying the reasoning in

Hitzig and Sfetkopoulos, Koenigsberg J. found that s 41(b.1)

of the MMAR, which limited DPL holders to a single client,

and s 54.1, which prohibited production license holders from

operating in common with more than two others, were both

contrary to s 7 of the Charter. She struck down these

specific provisions of the MMAR.

[134].. these provisions, unduly restricting DPLs from

growing for more than one ATP or growing in concert with

two other DPLs, are hereby severed from the MMAR.

25. Exactly the same two supply limits found in Hitzig that

caused the exemption to be deficient enough to warrant dropping over 4,000 charges last time but not this time. From Dec 2003 when Health Canada re-imposed the caps up to 2009 when they were struck down again, the exemption had been tainted with the same two supply flaws as the original pre-HitzigMMAR that had rendered the prohibitions invalid. The Court was not asked to follow J.P.'s Parker/Krieger BENO precedent, did not follow the BENO precedent and convicted the Accused charged while the exemption had been invalid.

MERNAGH [2012]

26. In R. v Mernagh [2012], once Ontario Superior Court

Justice Taliano had ruled that over 90% of doctors not

participating in the MMAR made the exemption

unconstitutionally illusory, he was asked to and did follow

the Parker and Krieger decisions to declare the S.4

Possession and S.7 Production prohibitions of no force while

the exemption had been absent.

27. The Ontario Court of Appeal overturned Mernagh ruling

that the patients had failed to establish any non-medical

reasons for 90% of Canada's doctors not participating.

Perhaps all those doctors had some contraindications against

marijuana use, the patients had not been asked if their

doctors had any medical reasons for refusing! The Crown

stayedMernagh's charges so he couldn't ask his patients for

the non-medical reasons their doctors had used to refuse.

28. But BENO was the correct remedy to declare Parker and

Krieger had taken effect upon discovering a dysfunctional

exemption regime.

R. V. SMITH [2015]

29. The Supreme Court of Canada in Owen Smith [2015] ruled:

[33] We would dismiss the appeal, but vary the Court of

Appeal's order by deleting the suspension of its

declaration and instead issue a declaration that ss. 4

and 5 of the CDSA are of no force and effect to the

extent that they prohibit a person with a medical

authorization from possessing cannabis derivatives for

medical purposes.

30. Smith argued MMAR restricted consumption to "worst use"

smoking. Of all the regulations designed by Health Canada to

impede access and maximize mortality, prohibiting the most

effective use of a medication and mandating its most

dangerous form of ingestion has to be it. Dried bud on a

nose cancer won't work, nor will smoking. Topical

application takes prohibited oil. All good citizens with

cancer who obeyed their exemption regulations could not use

it to cure their tumors. Banning best use sure makes the

exemption to use the medicine dysfunctional all by itself, a

far more genocidal violation of the Right to Life than any

caps on gardening ratios found in Hitzig: Mis-Application by

prohibiting optimal use and mandating use in its most

dangerous form, smoking, violated the right to life of many

more corpses than any supply flaw ever did.

31. Given a reduction from 5 or even 10 grams of bud down to

each gram of oil, prescriptions based on presumed smoking

are therefore inordinately insufficient. A patient with the

Health-Canada recommended maximum of 5 smokable dried grams

per day gets 1/2 a gram of oil to apply to a 3-inch tumor?

32. So Smith only struck down the flaw in the MMAR, was not

asked to follow Parker-Krieger.

MMPR Marijuana for Medical Purposes Regulations [2014]

33. By the time Smith declared the theMMAR

unconstitutional, it had already been repealed by the new

MMPR on April 1 2014. For the whole of the MMAR, it was not

a valid medical exemption.

ALLARD MANSON GRANDFATHERED HALF OF THE POSSESS PERMITS

34. On Mar 18 2014 almost 6 months after the MMPR ordered

theshut down of the all patient grows by April 1, 2014, was

the Allard motion before Justice Manson to extend patient

permits. Robert Roy's possession and production permits were

expiring that very day. Justice Manson reserved his decision

for three days. On Mar 21, he grandfathered all grow permits

but not all possess permits needed to use the grow permits.

Only those possession permits still not expired were

extended. Robert Roy lost the possession permit he needed to